Commission Communication to the European Parliament and the Council  Democratic control over Europol.

Legal base:



Document originated:

26 February 2002

Forwarded to the Council:

14 March 2002

Deposited in Parliament:

7 March 2002

Department:

Home Office

Basis of consideration:

EM of 2 April 2002

Previous Committee Report:

None

To be discussed in Council:

Date not set

Committee's assessment:

Politically important

Committee's decision:

Not cleared; further information requested

The document

8.1 The Communication begins with a brief outline of
the history of Europol to date. It emphasises that Europol's work
mainly involves the processing of information, including personal
data, although there have been recent suggestions that it might
be given real investigative powers.

8.2 The document also notes questions raised by the EU
institutions about democratic control over Europol. Most of these
have emanated from the European Parliament which, since 1999,
has called for greater parliamentary and judicial scrutiny of
the organisation. According to the Communication, however, the
first detailed discussion arose from the Swedish Presidency's
overview of the existing legal provisions in May 2001. This was
followed by an inter-parliamentary EU conference on Europol in
June 2001, which was organised by the Dutch Parliament and focussed
on the question of parliamentary control.

8.3 There are two issues related to democratic control
which the Communication does not address: judicial control and
the financing of Europol through the Community budget. The Commission
considers that it would be more appropriate to consider these
if Europol were given greater powers. One of the premises of the
document is that the controls exercised over Europol should not
be disproportionate to those that exist in the Member States for
national police forces which have much wider powers.

8.4 Under the heading Existing controls, the Communication
lists the following: the rules on data protection; the Management
Board (composed of representatives of each Member State, with
the Commission having observer status); and parliamentary control.
On the latter, it accepts that parliamentary control over Europol,
both at national and European level, takes a somewhat indirect
form. It argues that the same is true of the control of police
in most Member States, and, in relation to the European Parliament,
that the situation is the same for the whole area of police and
judicial co-operation, where there is no provision for co-decision.
It notes, however, that parliamentary control is not only indirect
but fragmented, since it is shared between the 15 national Parliaments
as well as by the European Parliament.

8.5 The Commission concludes that, although the current
system cannot be considered as legally insufficient, the
control needs to be clearer and more transparent. It considers
that improvements could be brought about through a limited number
of amendments to the Europol Convention itself, together with
a co-ordinating mechanism for national Parliaments and the European
Parliament. It warns, however, that if Europol were to be granted
investigative powers, further measures would become necessary.

8.6 The Commission then puts forward a number of recommendations,
which we consider below.

The Government's view

8.7 The Minister of State at the Home Office (Lord Rooker)
comments in general on the Communication as follows:

"We certainly welcome the Commission's contribution to
the current debate, though democratic control is only one aspect
of the wider issue of ensuring the most effective and accountable
working of Europol. However, this has to be set against more immediate
priorities. Our main priority is to ensure that Europol is able
to work effectively in support of the EU's efforts against serious
and organised crime. This would also include ensuring that Europol
is able to participate in Joint Investigation Teams, in a support
capacity. Agreement has been reached on the need for a simplified
procedure for the amendment of the Convention so that for example
Europol and Eurojust can keep in step. A study is currently taking
place on the most appropriate way of simplifying the procedure,
by identifying which of the Articles to the Convention should
be transferred to a Council Decision, and which should remain
in the Convention. The exercise does not currently include plans
to amend Articles, or to add new ones. To do so would result in
considerable delay to what is regarded as one of the main priorities
for Europol.

"As Europol is currently funded by contributions from Member
States, the European Parliament does not have the role which it
might if Europol were to be funded from the Community budget.
It is for the Management Board as the representatives of the Member
States to maintain a close overview of Europol's activities."

8.8 The Minister then lists the recommendations, and
gives us the Government's view of each:

"i. That a formal mechanism be established for
information exchange and co-ordination between national Parliaments
and the European Parliament. ... This would be taken forward through
the creation of a joint committee, of members of national and
the European Parliament committees responsible for police matters,
which would meet twice a year to exchange information and experience
and to discuss Europol matters. It would maintain close contact
with Europol through a smaller body of members nominated by the
joint committee, and reporting to it.

"Improved communication between national and the European
Parliaments is not to be discouraged. We would need to consider
whether changes to the Europol Convention could assist with this.

"ii. Amend Article 34 of the Europol Convention, so
that a single Annual Report on Europol's activities can be presented
for information to both the European Parliament and to the Council.

"Article 34 of the Europol Convention provides only for a
special report to be forwarded to the European Parliament. An
Annual Report is presented to the Council, and is tabled for scrutiny
by our own parliamentary committees. Presenting the Annual Report
to the European Parliament would remove the need for Europol to
produce different reports for different audiences.

"iii. Amend Article 34 of the Europol Convention,
so as to give the European Parliament the formal right to request
an exchange of views on the Europol annual report with the Presidency.

"Consideration is already being given to providing for the
Europol Director to appear before the European Parliament annually,
on an informal basis, principally to answer questions on the annual
report. There would not necessarily be a need to go further than
this.

"iv. Amend Article 34 of the Europol Convention, so
as to give the European Parliament the formal right to request
the Europol Director to appear before the competent Committee.

"Informal agreement to the appearance of the Director before
the Parliament is a measure to which we would accede. This annual
appearance though would be for the Director to provide information,
and should not be seen as recognising his accountability to the
Parliament.

"v. Amend Article 24(6) of the Europol Convention,
so as to make it obligatory for the Joint Supervisory Board (JSB)
to draw up its activity report on an annual basis and to forward
it to the European Parliament. It could be envisaged to include
in these reports information on the controls carried out by the
National Supervisory Bodies.

"Article 24(6) currently provides for the JSB[12]
to draw up activity reports at regular intervals, which are forwarded
to the Council, the Management Board having been given the opportunity
to deliver an opinion which is attached to the reports. This proposal
would require careful further consideration. The JSB is intended
to be an independent body, whose task is to review, in accordance
with the Convention, the activities of Europol in order to ensure
that the rights of the individual are not violated by the storage,
processing and utilisation of the data held by Europol. In the
performance of those duties the members of the JSB shall not receive
instructions from any other body. Further, it is currently for
the JSB to decide whether or not to publish its activity report,
and also to determine how it should be published. We would not
wish to see the independent supervisory body restricted in its
operation, or to be subordinated in any way."

Conclusion

8.9 We are pleased that the Commission has issued
a Communication on this important subject.

8.10 We do not totally share the Government's view
that there are more important priorities, although we accept that
amendments to the Europol Convention may not be appropriate at
this time. The Government's suggestions in relation to Recommendations
ii (a single Annual Report), iii and iv (the Director appearing
before the European Parliament) seem to us satisfactory ways of
meeting the spirit of the recommendations without recourse to
amending the Convention.

8.11 We are particularly interested in Recommendation
i (the establishment of a formal mechanism between national parliaments
and the European Parliament), which we may consider further in
the context of our current inquiry into Democracy and Accountability
in the EU. At this stage, we merely wish to express disappointment
that the mechanism is proposed to be established for "information
exchange and co-ordination". That seems to us to be a long
way from "accountability" on the one hand and "control"
on the other.

8.12 In general, our criticism of the Communication
is that it focuses on improved information-sharing, which, of
necessity, is largely retrospective. While we would welcome better
information-exchange, we do not think it will increase democratic
control over Europol. In our view, a more radical change is needed,
probably to the constitution of the Management Board. We ask the
Minister to comment on the feasibility and desirability of adding
a parliamentary representative, possibly drawn from the "smaller
body of members" envisaged in Recommendation i, to the Board.

8.13 In relation to the JSB, we do not accept that
it would unduly restrict its operation, or impair its independence,
if it were required to publish an annual activity report, as many
independent bodies, such as Inspectorates or Ombudsmen, do. In
this context, we ask the Minister why the activity reports it
does produce are not deposited in the UK Parliament, since they
would seem to fall within our terms of reference.

8.14 We consider that our scrutiny of draft agreements
between Europol and third states or non-EU related bodies represents
probably the closest control we are currently able to operate
over Europol. In that context, we remind the Minister of the need
to supply us with draft documents, and with the JSB opinion, in
enough time for us to scrutinise them thoroughly.

8.15 We consider this document to be the starting-point
of an important discussion, and one which we may wish to carry
further. In the meantime, we will keep it under scrutiny until
we have the Minister's response to the initial points we have
raised.